Citation Nr: 0600131
Decision Date: 01/04/06 Archive Date: 01/19/06
DOCKET NO. 01-03 910 ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Huntington, West Virginia
THE ISSUES
1. Entitlement to an initial, compensable rating for
bilateral hearing loss.
2. Entitlement to an initial rating in excess of 30 percent
for headaches.
REPRESENTATION
Appellant represented by: AMVETS
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
L. A. Rein, Associate Counsel
INTRODUCTION
The veteran had active military service from September 1974
to January 1979.
The present matters come before the Board of Veterans'
Appeals (Board) on appeal of July 2000 and May 2002 rating
decisions.
In the July 2000 rating decision, the RO granted the veteran
service connection and assigned an initial, noncompensable
disability rating for bilateral hearing loss, effective
August 30, 1999. Additionally, the RO granted service
connection and assigned an initial 10 percent disability
rating for tinnitus, also effective August 30, 1999. The
veteran filed a notice of disagreement (NOD) in October 2000,
and the RO issued a statement of the case (SOC) in February
2001. The veteran filed a substantive appeal (via a VA Form
9, Appeal to Board of Veterans' Appeals) in April 2001.
In June 2001, the veteran submitted a statement to the RO, in
which he noted his withdrawal from appeal the claim for an
initial rating in excess of 10 percent for tinnitus.
In January 2002, the veteran testified during a hearing
before RO personnel; a transcript of that hearing is of
record.
In the May 2002 rating decision, the RO granted service
connection and assigned an initial 30 percent rating for
headaches, as secondary to service-connected tinnitus,
effective June 12, 2001. The veteran filed an NOD later in
May 2002.
In September 2002, the RO certified the veteran's appeal for
an initial, compensable rating for bilateral hearing loss and
an initial rating in excess of 10 percent for tinnitus was
certified to the Board.
Later in September 2002, the RO issued an SOC with respect to
the claim for an initial rating in excess of 30 percent for
headaches. In September 2002, the veteran filed a
substantive appeal (via a VA Form 9) on this issue.
In November 2002, the Board dismissed the veteran's claim for
an initial rating in excess of 10 percent for tinnitus, and
determined that further evidentiary development was warranted
on the claim for an initial compensable rating for bilateral
hearing loss. The Board undertook such development pursuant
to the version of 38 C.F.R. § 19.9(a)(2) (2002) and Board
procedures then in effect.
However, the provision of section 19.9 purporting to confer
upon the Board jurisdiction to consider evidence developed by
the Board but not considered by the RO was later held to be
invalid. See Disabled American Veterans (DAV) v. Secretary
of Veterans Affairs (Secretary), 327 F.3d 1339 (Fed. Cir.
2003). Hence, in September 2003, the Board remanded the
veteran's claim for an initial, compensable rating for
bilateral hearing loss to the RO for consideration of the
additionally developed evidence. Following its consideration
of the evidence, the RO continued the denial of the veteran's
claim (as reflected in the November 2004 supplemental SOC
(SSOC).
In February 2005, the Board remanded to the RO both claims
currently on appeal to afford the veteran a hearing before a
member of the Board, as requested in his September 2002 VA
Form 9. In August 2005, the veteran was notified of a
scheduled videoconference hearing at the RO; however, by
letter received at the RO in October 2005, the veteran
declined the video hearing and requested a personal
appearance before a member of the Board at the RO. Although
the RO scheduled the requested hearing for November 2005,
later in October 2005 the veteran notified the RO by letter
that that he was unable to attend the hearing.
Because the veteran has disagreed with the initial ratings
assigned following the grants of service connection for both
bilateral hearing loss and headaches, the Board has
characterized the issues in light of the distinction noted in
Fenderson v. West, 12 Vet. App. 119, 126 (1999)
(distinguishing initial rating claims from claims for
increased ratings for already service-connected disability).
The Board's decision on the claim for an initial rating in
excess of 30 percent for headaches is set forth below. The
claim for an initial compensable rating for bilateral hearing
loss is addressed in the remand following the order; this
matter is being remanded to the RO via the Appeals Management
Center (AMC) in Washington, D.C. VA will notify the veteran
when further action, on his part, is required.
As a final preliminary matter, in a May 2002 statement, the
veteran appeared to raise a claim for total disability based
on individual unemployability (TDIU) due to service-connected
disabilities. Additionally, in an October 2002 letter, the
veteran stated that he currently had a claim for PTSD pending
before the RO. As the RO has not adjudicated these matters,
they are not properly before the Board, and are referred to
the RO for appropriate action.
FINDINGS OF FACT
1. All notification and development action needed to fairly
adjudicate the claim for an initial rating in excess of 30
percent for headaches has been accomplished.
2. Since the June 12, 2001 effective date of the grant of
service connection, the veteran has had headaches several
times weekly, with increasing frequency, treated with
Fioricet and sleep; he also has described experiencing
prostrating attacks not less than one to two times weekly.
CONCLUSION OF LAW
Resolving all doubt in the veteran's favor, the criteria for
an initial 50 percent rating for service-connected headaches,
from June 12, 2001, have been met. 38 U.S.C.A. §§ 1155,
5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159,
4.1, 4.2, 4.3, 4.7, 4.10, 4.20, 4.124a, Diagnostic Code 8100
(2005).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Duties to Notify and Assist
At the outset, the Board notes that, in November 2000, the
Veterans Claims Assistance Act of 2000 (VCAA) was signed into
law. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107
(West 2002). To implement the provisions of the law, VA
promulgated regulations codified at 38 C.F.R. §§ 3.102,
3.156(a), 3.159, 3.326(a) (2005). The VCAA and its
implementing regulations include, upon the submission of a
substantially complete application for benefits, an enhanced
duty on the part of VA to notify a claimant of the
information and evidence needed to substantiate a claim, as
well as the duty to notify him what evidence will be obtained
by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In
addition, they define the obligation of VA with respect to
its duty to assist a claimant in obtaining evidence. 38
U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c).
In view of the Board's favorable disposition of the veteran's
claim for an initial rating in excess of 30 percent for
headaches-granting the maximum schedular rating-the Board
finds that all notification and development action needed to
render a fair decision on that aspect of the appeal has been
accomplished.
II. Analysis
The veteran contends that his service-connected headaches are
more severe than the initial rating assigned following the
grant of service connection for that disability.
Disability evaluations are determined by comparing a
veteran's present symptomatology with criteria set forth in
the VA's Schedule for Rating Disabilities, which is based on
average impairment in earning capacity. 38 U.S.C.A. § 1155;
38 C.F.R. Part 4. When a question arises as to which of two
ratings apply under a particular diagnostic code, the higher
evaluation is assigned if the disability more closely
approximates the criteria for the higher rating. 38 C.F.R. §
4.7. After careful consideration of the evidence, any
reasonable doubt remaining is resolved in favor of the
veteran. 38 C.F.R. § 4.3. The veteran's entire history is
reviewed when making disability evaluations. See generally
38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589
(1995).
Where entitlement to compensation already has been
established and an increase in the disability rating is at
issue, it is the present level of disability that is of
primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58
(1994). However, where, as here, the question for
consideration is entitlement to a higher initial rating
assigned following the grant of service connection,
evaluation of the medical evidence since the effective date
of the grant of service connection and consideration of the
appropriateness of "staged rating" (assignment of different
ratings for distinct periods of time, based on the facts
found), is required. See Fenderson, 12 Vet. App. at 126.
The RO has evaluated the veteran's headaches as 30 percent
disabling under the provisions of 38 C.F.R. § 4.124a,
Diagnostic Code 8100 (2005). Under that diagnostic code,
headaches with characteristic prostrating attacks occurring
on an average of once a month over the last several months
shall be evaluated as 30 percent disabling, and very frequent
completely prostrating and prolonged attacks productive of
severe economic inadaptability shall be evaluated as 50
percent disabling (the maximum rating assignable under that
diagnostic code).
Considering the evidence of record in light of the above
criteria, and resolving all reasonable doubt in the veteran's
favor (see 38 C.F.R. § 4.3), the Board finds that the overall
record supports the assignment of the maximum 50 percent
rating for headaches since the June 12, 2001 effective date
of the grant of service connection for that disability.
On April 2002 VA examination, the veteran reported that his
headaches dated back to around 1980 and that they had become
worse over time. The veteran stated that the headaches were
triggered by a change in pitch of his tinnitus. He described
the headaches as aching, occurring frontal and temporal
bilaterally. He described average pain severity of 9 to 10
out of a 10, occurring 4 to 5 out of 7 days, lasting an
average of 3-4 hours. He stated that the headaches were
prostrating, and that he had occasional nausea and rare
vomiting. No specific treatment for the headaches was noted,
but the veteran indicated that he took cyclobenzaprine 10 mg
and etodalac 300 mg for degenerative disc disease of the
cervical spine, which he took for his headaches as well, and
stated that he just needed to go to sleep.
In the veteran's May 2002 NOD with the assignment of an
initial 30 percent rating for headaches, he stated that his
headaches were a serious employment handicap, an economic
hardship and mentally unsettling. He felt that he could not
hold a job, even if his back wasn't messed up, because of
these headaches. They got really bad to the point that he
had to lay down and take something like pain pills to knock
him out until they lightened up. This happened at least once
or twice a week or six to eight times a month and lasted a
couple of days where he was unable to concentrate during the
attacks.
A February 2003 VA clinic record reflects that the veteran
complained of continued problems with headaches, but was
taking Fioricet, as needed, which he found effective, but bad
headaches were not as effective to the drug.
A July 2003 VA outpatient record reflects that the veteran
stated that he took Fioricet for his headaches that helped,
but made him groggy. He reported that his headaches were
becoming an everyday occurrence. They started with ear
ringing and then the headache would come. The diagnosis was
chronic headaches.
The veteran submitted lay statements from friends and family
members, who all reported that the veteran suffered from
persistent, frequent and severely painful headaches which
rendered him unable to function and required him to take pain
pills, miss meals and go to bed.
The overall evidence reflects that, since the June 21, 2001
effective date of the grant of service connection, the
veteran has experienced headaches several times weekly, which
appear to be increasing in intensity. While the veteran
initially described all of his headaches as "prostrating,"
the fact remains that, by his own admission, some of the
headaches have been responsive to treatment with medication
and sleep. The Board finds that the "bad" headaches that
the veteran has described as less responsive to medication,
and which require him to be "knocked out," are better
characterized as prostrating; the veteran has described these
headaches as occurring not less than once or twice weekly.
These assertions tend to indicate more than the
characteristic prostrating attacks occurring, on the average,
of once per month, that warrant the assignment of the current
30 percent rating. Moreover, while actual severe economic
inadaptability has not been demonstrated objectively, the
assertions of the veteran and his family members as to the
frequency and severity of his headaches, if accepted as true,
would, conceivably, result in greater industrial impairment
than is contemplated in the initial 30 percent rating
assigned.
Under these circumstances, and with resolution of all
reasonable doubt in the veteran's favor, the Board finds that
the criteria for assignment of an initial 50 percent rating-
the maximum rating assignable for the veteran's headaches
under Diagnostic Code 8100-is warranted.
ORDER
An initial 50 percent rating for headaches, from June 12,
2001, is granted, subject to the law and regulations
governing the payment of monetary benefits.
REMAND
With respect to the issue of entitlement to a compensable
rating for bilateral hearing loss, the Board finds that
additional development is necessary prior to appellate
review.
During the hearing before RO personal and in subsequent
written statements, the veteran contended that his bilateral
hearing loss warranted a compensable evaluation. He also
maintains that his hearing has worsened since the last VA
audiological examination in February 2003. The veteran
asserts that even with a hearing aid, it is still hard for
him to use the phone or talk to people when they are standing
on his right. His spouse corroborated the veteran's
contentions based on her first-hand observations of him
during the last several years.
Given the allegations of worsening disability, the veteran
must be afforded a new audiological examination to determine
the current level of severity of the veteran's bilateral
hearing loss. See 38 U.S.C.A. § 5103A(d) (West 2002);
Caffrey v. Brown, 6 Vet. App. 377 (1994).
Accordingly, the RO should arrange for the veteran to undergo
a VA audiological evaluation at an appropriate VA medical
facility. The veteran is hereby advised that failure to
report to the scheduled examination, without good cause, may
result in a denial of the claim. 38 C.F.R. § 3.655 (2005).
Examples of good cause include, but are not limited to, the
illness or hospitalization of the claimant and death of an
immediate family member. If the veteran fails to report to
the scheduled audiological evaluation, the RO should obtain
and associate with the claims file copy(ies) of the notice(s)
of the evaluation sent to him by the pertinent VA medical
facility.
Prior to arranging for the veteran to undergo VA examination,
the RO must obtain and associate with the claims file all
outstanding VA medical records. The claims file currently
includes outpatient treatment records from the VA Medical
Center (VAMC) in Clarksburg, West Virginia (hereinafter
Clarksburg VAMC), dated from June 1997 to February 2004. The
Board emphasizes that records generated by VA facilities that
may have an impact on the adjudication of a claim are
considered constructively in the possession of VA
adjudicators during the consideration of a claim, regardless
of whether those records are physically on file. See Dunn v.
West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2
Vet. App. 611, 613 (1992). Hence, the RO must obtain all
outstanding pertinent medical records from the Clarksburg
VAMC since February 2004, following the procedures prescribed
in 38 C.F.R. § 3.159 (2004) as regards requesting records
from Federal facilities.
Further, to ensure that all due process requirements are met
with respect to each of the claims on appeal, the RO should
also give the veteran another opportunity to present
information and/or evidence pertinent to the claims,
notifying him that he has a full one-year period for
response. See 38 U.S.C.A § 5103(b)(1) (West 2002); see also
Veterans Benefits Act of 2003, Pub. L. No. 108-183, § 701,
117 Stat. 2651, ___ (Dec. 16, 2003) (to be codified at 38
U.S.C.A. § 5103(b)(3)) (amending the relevant statute to
clarify that VA may make a decision on a claim before the
expiration of the one-year VCAA notice period). After
providing the appropriate notice, the RO should obtain any
additional evidence for which the veteran provides sufficient
information and, if necessary, authorization, following the
procedures prescribed in 38 C.F.R. § 3.159 (2005).
The actions identified herein are consistent with the duties
to notify and assist imposed by the VCAA. However,
identification of specific actions requested on remand does
not relieve the RO of the responsibility to ensure full VCAA
compliance. Hence, in addition to the actions requested
above, the RO should also undertake any other development
and/or notification action deemed warranted by the VCAA prior
to adjudicating the claims on appeal. Moreover, adjudication
of the claim for a higher initial rating for hearing loss
should include specific consideration of whether "staged
rating" (assignment of different evaluations for distinct
periods of time based on the facts found), pursuant to
Fenderson, is appropriate.
Accordingly, this matter is hereby REMANDED to the RO, via
the AMC, for the following actions:
1. The RO should obtain from the
Clarksburg VAMC all outstanding pertinent
records of evaluation and/or treatment
for bilateral hearing loss, from February
2004 to the present. The RO must follow
the procedures set forth in 38 C.F.R. §
3.159(c) as regards requesting records
from Federal facilities. All records
and/or responses received should be
associated with the claims file.
2. The RO should send to the veteran and
his representative a letter requesting
that the veteran provide sufficient
information, and if necessary,
authorization to enable it to obtain any
additional pertinent evidence not
currently of record. The RO should also
invite the veteran to submit all
pertinent evidence in his possession, and
explain the type of evidence that is his
ultimate responsibility to submit. The
RO's letter should clearly explain to the
veteran that he has a full one-year
period to respond (although VA may decide
the claims within the one-year period).
3. If the veteran responds, the RO
should assist him in obtaining any
additional evidence identified by
following the current procedures set
forth in 38 C.F.R. § 3.159. All
records/responses received should be
associated with the claims file. If any
records sought are not obtained, the RO
should notify him and his representative
of the records that were not obtained,
explain the efforts taken to obtain them,
and describe further action to be taken.
4. After all available records and/or
responses from each contacted entity have
been associated with the claims file, the
RO should arrange for the veteran to
undergo audiological evaluation at an
appropriate VA medical facility.
The audiologist should conduct audiometry
and speech discrimination testing for
purposes of evaluating the veteran's
bilateral hearing loss, and set forth
testing results in a printed
(typewritten) report.
5. If the veteran fails to report for
the scheduled audiological evaluation,
the RO must obtain and associate with the
claims file (a) copy(ies) of any
notice(s) of the date and time of the
evaluation and the examination sent to
him by the pertinent VA medical facility.
6. To help avoid future remand, the RO
must ensure that all requested action has
been accomplished (to the extent
possible) in compliance with this REMAND.
If any action is not undertaken, or is
taken in a deficient manner, appropriate
corrective action should be undertaken.
See Stegall v. West, 11 Vet. App. 268
(1998).
7. After completing the requested
action, and any additional notification
and/or development deemed warranted, the
RO should readjudicate the claim on
appeal in light of all pertinent evidence
and legal authority. The RO must
specifically document its consideration
of whether "staged rating," pursuant to
the Fenderson case, cited to above, is
appropriate.
8. If the benefit sought on appeal
remains denied, the RO must furnish to
the veteran and his representative an
appropriate SSOC that includes clear
reasons and bases for all determinations,
and afford them the appropriate time
period for response before the claims
file is returned to the Board for further
appellate consideration.
The purpose of this REMAND is to afford due process and to
accomplish additional development and adjudication, and it is
not the Board's intent to imply whether the benefits
requested should be granted or denied. The veteran need take
no action until otherwise notified, but he may furnish
additional evidence and/or argument during the appropriate
time frame. See Kutscherousky v. West, 12 Vet. App. 369
(1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v.
Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet.
App. 129, 141 (1992).
This REMAND must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans Benefits Act of 2003, Pub. L. No. 108-183, §
707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38
U.S.C. §§ 5109B, 7112).
______________________________________________
JACQUELINE E. MONROE
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs